I've decided that public figures should hire ME as their media-relations consultant

[xiphias]

What Michael Phelps Should Say:
"C'mon, guys -- you only said not to use performance-ENHANCING drugs."

What Sheppard Fairey Should Say:
"Okay, AP -- I'll make you this offer for a settlement: I make no admission of wrongdoing, but I'll give you 50% of the money I made off of the OBAMA poster."

---

Michael Phelps is a US champion Olympic swimmer who has won many gold medals and set many world records in swimming. Recently, a British tabloid published a photo which appears to show him smoking a bong.

After these photos surfaced, USA Swimming suspended him for three months, and Kellogg's cancelled an endorsement deal.

. . . come to think of it, Kellogg's was MORONIC for this. What they SHOULD have done was extend his endorsement and use him for Pop-Tarts, Cheez-Its, and the entire Keebler line.

Shepard Fairey is the artist who created this image:



The AP claims that he traced the basic image off of a photo by Mannie Garcia, owned by the AP:


Shepard Fairey, however, denies this claim. HE says that he traced the basic image off of this photo by Mannie Garcia, owned by the AP:


(Mannie Garcia, by the way, says that, whether Fairey copied the HOPE poster off of his photo or not, Garcia thinks that HE owns the goddamned photo, not the AP, so actually what's happening is that the AP is trying to steal the reference photo from HIM, not that Fairey is trying to steal the image from the AP.)

Fairey released the HOPE image as just a sort of thing to show people, that other people could go and run with. Fairey didn't make one dime off of the thing. It wasn't a commercial venture at all -- he just did it for fun, and other people ran with it.

(It being non-commercial probably doesn't change any of the legal issues, but it does make it harder to claim that the AP lost any money off of it.)

Comments

[supergee.livejournal.com]

That could get Fairey arrested for impersonating a bank.

[xiphias.livejournal.com]

There's a difference between "zero" and a negative number, though.

[browngirl.livejournal.com]

*giggle*

Though, really, offer the AP 20%.

[xiphias.livejournal.com]

What's the difference? 20% of $0 is just the same as 50% of $0. Heck, he could offer them 100% of the money he made, if it'd get them off his back.

[browngirl.livejournal.com]

If someone offered me 50% of X Unknown Quantity, I might be suspicious of the seeming generosity and inquire as to the value of X before I agreed; if I were offered 20% I might not think to be suspicious and might agree before finding out the value of X.

[xiphias.livejournal.com]

Or, y'know, offer them 20%, and let THEM argue the way up to 50%

[browngirl.livejournal.com]

There you go!

[smacaski.livejournal.com]

I don't know--if you told Phelps there were some Hot Pockets waiting for him at the end of the pool, that might inspire him to a world record time.

[cantkeepsilent.livejournal.com]

Ah! Thank you for posting the actual picture. Even I could see the differences between the head shapes in the Hope poster and the picture the AP claimed was the source, so I assumed that Fairey actually free-handed the poster. Seeing the picture that was the actual source, I am reduced to acknowledging that he did, in fact, do a tracing. God, what a dumbass.

According to the AP's FAQ (http://gallery.pictopia.com/ap/static/faq/), it is the widespread distribution that makes it a commercial use of the photo, not the issue of whether it was done for profit. And I don't think that it is reasonable to assume that he gets to dictate the terms of the licensing agreement when his first plan was evidently to not get caught with his hand in the cookie jar.

[xiphias.livejournal.com]

Well, yeah -- he was saying all along that he did a tracing.

The AP's ideas are quite possibly not in line with US law. What we've got here is a gen-u-wine disagreement over the definitions of "transformitive", "derivative work", and "fair use."

The question isn't whether he freehanded from a reference work or traced -- that should make NO difference legally or morally, and, anyway, it's not an open question: Fairey says he traced.

The question is wheher the final product is different enough to count as a different thing.

[cantkeepsilent.livejournal.com]

Fair enough, but there has always been some level of question of how much work he did; he traced the nose but did enough "derivative work" to select a new tie color and not trace the flag in the background. If he had traced the face but tilted the neck so that Obama was looking upward instead of mostly forward (which was my assumption from comparing the two "original" images), then one might have cause to say both "tracing" and "transformative" in the same sentence with a straight face. The actual photo makes it clear that he didn't even perform that much work.

Copyright law in the United States has always been fluid by design, and judges are constantly called on to make subjective rulings to allow evolving understandings of "fair use". But a few things that do seem to be well-established are that "commercial use" extends to distribution by non-profits and that an artist's liability is not capped by the amount of money that was made. The whole thing is up to a judge, of course, but my judgment has been solidified by seeing the new picture.

(As to the point in your second comment, my understanding is that the AP makes a deal with its content providers when acquiring the media in the first place. I honestly don't know if Garcia stands to make money off of the arrangement that the AP and Fairey will eventually come to or if the money that Garcia made up front was to be enough to totally buy out his rights. I can say that the media creators that I've heard from on this issue seem grateful for AP's diligence.)

[xiphias.livejournal.com]

. . . did you miss the part where Fairey changed the whole thing to solid color blocks in red and blue, rather than life-color?

[cantkeepsilent.livejournal.com]

Obviously, I did not.

But it does come across as a rather trivial manipulation of property that doesn't belong to Fairey. Regardless of the artistic merit of his style, he would be producing obviously different works if they had come from different photographs and therefore he is ethically and financially indebted to the artists who created the base works. I would similarly expect that the Wall Street Journal would acquire the license for the photos that they put on their front pages even though they then apply their distinctive and artistic "hedcut" effect to it.

[xiphias.livejournal.com]

Are those new works from the originals?

[(Anonymous)]

Well, I'd have to disagree.

The amount of work the second author puts into his creative efforts really only matters for determining whether he copied or created a derivative work, and whether, if it is not an infringing derivative work, the new work is copyrightable. So long as there is a modicum of creativity, that's all that is required on that front. It's a terribly low threshold, and Fairey has certainly crossed it.

As for the first fair use factor, which deals with the commercial nature of the use, let's remember Campbell: is the new work invested with a different expression, meaning, and message than what it is based upon? I think it's pretty clear that it is. Of course, let's remember that in practice, fair uses tend to hinge on the fourth factor, and here Fairey looks strong; the poster isn't harming the market of the original photo. They're in their own separate markets, neither competing with the other. Of course, the latter is far more popular, but that's of no great import. Clearly no one is out there thinking that they'll get the poster as a cheap substitute for the photograph that they really want.

As for who the copyright holder is, I'd be very surprised if AP didn't require its photographers to sign over their rights. The photographer needs to take a look at his contract.

Incidentally, while Ian has posted a couple of excellent transformative works, the greatest transformative author has surely got to be Duchamp, who not only did L.H.O.O.Q. (http://upload.wikimedia.org/wikipedia/en/6/6e/Marcel_Duchamp_Mona_Lisa_LHOOQ.jpg), but did Fountain (http://upload.wikimedia.org/wikipedia/commons/a/a1/Marcel_Duchamp_Fountain_at_Tate_Modern_by_David_Shankbone.jpg), which is just the best thing ever. He just said it was art, and signed it, and it was; no actual creative effort was required at all.

[xiphias.livejournal.com]

The second question, of course, is what Mannie Garcia has to say about that. The two possible reference photos were both taken by Garcia, at the same event, a couple minutes apart from one another. It doesn't really MATTER which one was the basis.

The UPSETTING thing is that the AP is claiming copyright control over Garcia's photo.

Garcia is the victim here -- but a victim of the AP's assertion, more than Fairey's derivative work.